Legal Eagle

Nicholas Cowdery is a distinguished legal mind. The Director of Public Prosecutions in New South Wales for a record sixteen-and-a-half years, Cowdery was considered a public crusader by some, public nuisance to others. In person, he is genuine, funny and passionate about the law, writes Kira Spucys-Tahar

Nicholas Cowdery is a distinguished legal mind. The Director of Public Prosecutions in New South Wales for a record sixteen-and-a-half years, Cowdery was considered a public crusader by some, public nuisance to others. In person, he is genuine, funny and passionate about the law, writes Kira Spucys-Tahar

Since leaving office in 2010, Nick Cowdery has become a vocal advocate in the push for judicial reform and the legalisation of drugs. “The government should be controlling, regulating and taxing the production and supply of drugs, just as it does now with alcohol and nicotine,” he says. “Only by taking over the market can the government effectively control it, reduce the harms that are caused by prohibition and by drugs themselves and remove, or at least substantially reduce, criminal profits derived from the market.”

A young Cowdery was educated at boarding school at Sydney Grammar. “I hated boarding!” he says. “The conditions were Dickensian.”

After being advised by a careers master that he should follow the legal profession, Cowdery began a degree at the University of Sydney while living at St Paul’s College.

Cowdery did two years of Arts on campus before attending the Law School in Philip Street – “not what they call the ‘old law school’ today, but the ‘old, old law school’. It was a ramshackle building. We had lectures up and down Philip Street in whatever space the university could find and it was quite a challenge.”  He was then offered an undergraduate position in the office of the Commonwealth Deputy Crown Solicitor to finish his university career.

In 1985 he was recruited as junior counsel for the Crown in the prosecution of Justice Lionel Murphy. In 1991, when the Fitzgerald Inquiry recommended charges against Joh Bjelke-Petersen, Cowdery lead the prosecution case. There was a subsequent docu-drama called Joh’s Jury. “I was portrayed by Graeme Blundell, at that stage most famous for Alvin Purple, which was slightly risqué. They relied on transcripts of the proceedings. I was told later that Blundell had come in to the public galleries of some courts where I had been appearing to try and get some pointers on mannerisms and mode of speech, he’d been sitting in the back of the court watching me, but I had no idea.”

In 1994 Cowdery was offered the role of NSW Director of Public Prosecutions. “When I was appointed DPP, within a fairly short time, Alan Jones was giving me a lot of stick on the radio about something, I have no idea what it was, and my mother rang me and she said, ‘Have you heard what that terrible Mr Jones is saying about you?’ and I said, ‘No I haven’t. Why don’t you listen to some other radio station?’ She got used to it, as did my wife and children. Sometimes people come up to me and have nice things to say and that’s very encouraging. I had one person in Elizabeth Street once come up and abuse me, but I think he was somebody I’d put in jail, so he probably had a good reason.”

Cowdery had life tenure as DPP where he could only be dismissed if he was declared mad or bankrupt. But in order to be entitled to the pension, he would need to retire at the usual age of 65. The Attorney-General refused to change the legislation and so in the month of his birthday, Cowdery was forced to give notice of his retirement. “I think it was an unfortunate way to end a career in that position. I don’t have any longings or regrets; I don’t miss being the Director of Public Prosecutions because I’ve been able to become very active doing other things in the criminal justice area. It was probably time to move on to something else anyway,” he says. “And I note that the government of that time didn’t last much longer than I did.”

Cowdery is unapologetic about his performance in the job. “The important thing to remember is that it’s no part of a DPP’s job to be popular with anybody. That’s not in the duty statement. Almost every decision you make in the course of a working day is going to make somebody unhappy. It’s the nature of the job; it’s the nature of the decisions that have to be made and the impact that they have on people.

“Certainly some politicians over my sixteen years, did seem to take some matters to heart, much more than they should have, particularly in the latter years in office. That’s unfortunate. My only way of dealing with that was to continue to play, to use the cricketing analogy, with a straight bat, to continue to apply the principles that apply to the job and to deal with each issue on its merits.

“Every decision that gets to the level of Director is a difficult decision; it’s only the toughest ones that come all the way to the top. Some involve legal complexity, some are difficult because of the evidentiary difficulties, some are difficult because of the personal involvement and engagement of the people, and the emotional or psychological investment people have made in the matter.”

A great challenge Cowdery faced while DPP was the prosecution of Deputy Senior Crown Prosecutor Patrick Power for possession of child pornography. “That was a shattering case for the staff of the office of the DPP. For somebody of a fairly senior level, prosecuting cases of the very kind in which it turned out he had been involved, for that sort of revelation to happen is devastating for the people who have worked with somebody as a colleague. It was something we just had to deal with.”

Cowdery’s list of some of his most difficult cases includes high-profile names. The decision to prosecute Geoffrey Gilham, Gordon Wood, Kelli Lane. “Ultimately the DPP has the responsibility of making those tough decisions and takes the responsibility for them.”

Retirement for Nick Cowdery has not meant a retreat from contentious issues. Cowdery’s part in the Australia21 process was intended to bring the subject of drugs back on to the public agenda.  “We need people to consider the issues, look around at what is happening, explore better ways of dealing with drugs – because drugs aren’t going away – and try to formulate regimes that are going to be more effective in controlling the amount of drug use in the community, in reducing the real harms.”

Cowdery firmly believes Nixon’s ‘War on Drugs’ has failed – “It was a political stunt to begin with.”

“People in different situations, for different reasons, want to change their moods. It might be for relaxation; it might be for escape; it might be for excitement. There are all kinds of motives behind it. So there will always be a demand, and there always has been. And where you have a demand you have a supply.”

Cowdery believes the explosion of crime in south-western Sydney is a result of turf wars between gangs involved in drug supply. “I’m quite sure that’s the motive behind it all – all the shootings that have been happening for the past year or so.” Cowdery strongly considers government regulation the best option.

“I think the Portugal model is a very good starting point,” he says. “The label that attaches to it is ‘decriminalisation’ but it’s been running now for about eleven years. It is working. It is reducing drug use, not dramatically, but measurably. It is improving the lives of drug users and making them productive citizens once again. It has not resulted in a sort of ‘honeypot’ effect with people flocking in from other nearby countries. You are saving on imprisonment; you are saving on repeat criminal offending; you’re saving on losing those people from productive work and social relationships.”

Cowdery outlines other possibilities for tackling the drug problem. “We could be looking at the medical use of heroin,” he says. “Another area is the medical use of cannabis. You can actually get cannabis for medical purposes in sixteen of the United States and in several countries including the Netherlands, Germany, Spain, Israel and Finland.  People say cannabis has become dangerous…but if you had a controlled market, you could use only naturally grown field cannabis, which doesn’t have those additional risks, which is less harmful than tobacco.”

Cowdery thinks there is no answer to amphetamines “except to legalise them and to regulate their supply. At the moment, the people who are benefiting most from the prohibition of amphetamines are the bikie gangs who manufacture and distribute the stuff.”

I ask why Cowdery is such a zealous advocate for drug reform. “We are just throwing billions and billions of dollars at a problem without any prospect of it improving or being solved. That offends me,” he says.

“Another aspect is the personal harms that are caused by people with addiction. We’ve had a lot of successes with reducing these through needle and syringe exchange programs, with methadone programs, with the work that’s been done in controlling HIV/AIDS spread, and Australia has a very high reputation in those areas, but we can do more.

“The medically supervised injecting centre is a great success; it’s ridiculous that there is only one in Australia. It’s been running now for more than ten years…but it’s crazy that you have to bring your own injectable drug into the centre to make use of the facilities. You could be injecting anything into yourself! That’s why they have these overdoses that occur on a regular basis. It’s just crazy. The problem is politicians are very nervous about it. Politicians are stuck in this silly idea of being either ‘tough’ or ‘soft’ on the offences that have been made criminal by an act of parliament. It would be much more sensible if we could talk about being ‘smart’ on drugs and ‘smart’ on crime.”

“Richard Nixon declared a war on chemical and botanical substances, which is a pretty bizarre idea in itself, [so] there’s this silly notion about winning or losing a war. Politicians don’t like anybody to say ‘you’re a loser! You have done something and you have lost’. It’s as much a question of terminology as anything else…politicians won’t move on the issue until there is support from the community for action to be taken.”

Cowdery has been assisting in making the legal profession more accessible to the community through association with television shows such as Crownies.

“There was a lot of collaboration between the office and the producers and scriptwriters of Crownies. Of course, Crownies is intended to be entertainment…they twist the stories so they’re more exciting than in real life.”

Nick Cowdery is a straight-shooter. “Drinking wine is the guiltiest pleasure that I have, I enjoy a few glasses of wine with dinner at night,” he says. “Alcohol is my drug of choice. And I can honestly say that I have not tried any illicit drugs. Hand on heart. I tried smoking when I was very young – tobacco – and I hated it so much that I’ve never wanted to smoke anything since so that rules out cannabis. I don’t feel the need to get myself excited for a party, so that rules out ecstasy and amphetamines and all that stuff, and I’m not so overcome by life that I need to escape by using heroin, so I’ve never gone near any of that either.”

Nick Cowdery is an intriguing character who never seems to stop. As well as his role as adjunct professor in the faculty of law at the University of Sydney, he also has appointments at three other universities, is involved in research projects and international consultancy work, and writes on criminal justice. “The publishers want me to write another book, but I seem to be too busy doing other things at the moment.

“There is a quiet passion I suppose you might say, about keeping involved. I thought that while I still can it’s appropriate to give something back to the community and to the system of criminal justice.”

You don’t think you gave enough while DPP? “I suppose I did, but I got a lot out of it for myself, a lot of professional interest and stimulation and satisfaction. Now that I have the opportunity, I’m very happy to give some of that back to people, who hopefully in the future will be able to benefit from it.”